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PROCTOR | March 2016
Property – transfers of land by husband’s
father – assessment of contributions
In Bagby [2015] FamCAFC 209 (6 November
2015) the Full Court (Bryant CJ, May &
Thackray JJ) dismissed the husband’s appeal
from a property order made by Magistrate
Moroni of the Magistrates Court of WA. The
asset pool mainly comprised ‘Property A’
($610,000) transferred by the husband’s
father to the parties jointly and ‘Property B’
($1.95m) transferred by him to the husband
as trustee of a trust for the children’s
benefit. The magistrate adopted an asset-
by-asset approach, assessing the parties’
contributions to Property A as equal ([47])
and the wife’s interest in Property B at 30%.
No s75(2) adjustment was made despite the
wife being a Centrelink pensioner.
On appeal the husband argued that the order
was unjust, the outcome being more than the
wife had applied for or “outside the range”.
Thackray J (with whom Bryant CJ agreed)
disagreed, saying that the husband’s counsel
“conceded that it was open to the magistrate
to award the wife more than she sought”
([127]), concluding ([164]-[166]):
“It should also be noted that his Honour
found that the majority of the s 75(2) factors
favoured the wife but decided not to make
any adjustment in her favour on account of
that fact ‘mainly because of the reasonably
substantial size of the asset pool under
consideration and to the practical results of
the Court’s determinations on the subject
of contributions’ ... ( ... ) In effect, the
magistrate was saying that whatever the
wife might have lost on the contributions’
swings, she would have made up on the s
75(2) merry-go-round. Given the length of
the marriage [25 years] and the parties’ ages,
health and employment prospects, I consider
that view was well open to his Honour.”
Property – declaration that property
husband transferred to new wife was held
on trust – business valuation impossible
due to his ‘dishonest’ dealings
In Lynch & Kershaw & Ors [2015] FCCA
2712 (13 October 2015) a business valuer
“declared himself unable to arrive at a value
... because the husband failed to provide all
the information requested of him and ... the
records he did provide were unreliable” ([4]).
The husband had also transferred $100,000
from the business to the second respondent,
his new wife (Ms [K]), after separation which
was used to buy ‘Property F’ (later sold and
the proceeds used to buy ‘Property J2’
registered in Ms [K]’s name). The wife sought
a declaration under s78(1) FLA that Property
J2 was held on trust for the parties.
Judge Terry found ([197]) that “[a]lmost
immediately after separation the husband
with the assistance of Ms [K] embarked on
a deliberate scheme to remove money from
the businesses and acquire properties which
he hoped could be put beyond the reach
of the wife”. Upon finding ([196]-[207]) that
all purchase moneys had been provided
by the husband, that he treated Property F
as his own property and that it was he, not
Ms [K], who made the mortgage payments
on both properties, the court declared that
Property J2 was beneficially owned by the
husband under a resulting trust and should
be included in the pool. The court said ([190])
that it was “impossible ... to come to a firm
conclusion about what has gone missing
from the companies since separation”. As to
the order made, the court said ([285]-[286]):
“If the businesses are worth $310,000 as the
husband asserts and nothing else is missing
then he is receiving about 38% of the asset
pool when an amount slightly over 50% might
otherwise have been ordered in light of his
inheritance and the age difference between
himself and the wife. If the businesses are
worth $645,425 as the wife asserts and
nothing else is missing then he is receiving
53.5% of the asset pool which is within a
range of just and equitable outcomes.”
Children – father took child from mother
for ‘respite’, disappearing with paternal
grandmother and child for five years
In McLeod & Needham & Anor [2015]
FCCA 2808 (1 October 2015) Judge Terry
heard a case between mother and paternal
grandmother of an 8-year-old child (X). The
parents began living together when the mother
was 17 and the father 20, the mother deposing
to violent and coercive conduct by the father
([6]). The case did not relate to their older
child (Y). The father did not take part in the
proceedings except to appear in person on the
first day of the hearing to say that he supported
his mother. It was found ([10]-[15]) that the
mother was unhappy in her relationship, did
not cope well after X was born, that when X
was three or four months old the father took X
with the mother’s agreement to give her some
“respite” but instead (in conjunction with the
paternal grandmother who at trial claimed the
mother had given the child up) “stole X away”
to Queensland, remaining out of touch with
the mother for the next five years. In that time
the mother “struggl[ed] with alcohol abuse and
began using cannabis” and, “struggling with
her own issues”, “did not make very strenuous
efforts” to find the child ([21]).
The court found, however, that “gradually over
time the mother got her life back on track.
She sought assistance for her depression and
anxiety, she obtained a job and in due course
she bought a house ... subject to a mortgage
and re-partnered with Mr C” ([23]). She began
parenting proceedings and to spend time with
X after hearing from Child Support that the
father was in jail ([24]). X expressed a wish “to
stay with the paternal grandmother [who] ...
needed her because the paternal grandfather
had died”, the report writer’s view being that
the child “had been coached to say that” ([94]-
[95]). The court declined to place weight on
the child’s views as she had had “insufficient
experience of the alternative offered by the
mother” ([100]). Upon ordering that the child
live with the mother and that the grandmother
have supervised time for the next 12 months,
the court said ([210]-[211):
“There is a very high risk that if X remains with
the paternal family her relationship with her
mother will fail to thrive due to the antagonism
the paternal family feel for the mother and
the mistaken beliefs they hold about her
which could in turn lead to a failure to take
X to changeovers and a failure to facilitate
telephone communication. My major concern
is that nobody in the [paternal] family is
capable of protecting X from exposure to the
father’s drinking, drug use and violence. ( ... )”
S75(2) ‘merry-go-
round’ makes up
for land transfers
with Robert Glade-Wright
Robert Glade-Wright is the founder and senior editor
of The Family Law Book, a one-volume looseleaf and
online family law service (thefamilylawbook.com.au).
He is assisted by Queensland lawyer Craig Nicol, who
is a QLS accredited specialist (family law).
Family law
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